‘État de droit’: Why Import the German Term ‘Rechtsstaat’?

Luc Heuschling

Professor of Constitutional Law

University of Luxembourg

This chapter will analyse the discourse in France1 on the

relatively new French expression ‘État de droit’. After a first,

unsuccessful rise in its use at the beginning of twentieth century

(1907-1930s), the term has, since 1977, progressively informed the

language of French Constitutional law scholars and even

penetrated, to some extent, the language of specialists of other

legal disciplines, politicians, journalists, and even ordinary citizens.

The international success story of a German term

In French, the term État de droit is generally written with a

capital ‘E’, as, originally, it was coined in the second half of

nineteenth century (with the first documented use in 1868) as a

direct translation of the German term Rechtsstaat’, created by

Placidus in 1798. État, with a capital ‘E’, means ‘State’ (in German,

‘Staat’), and ‘droit’ (in German, ‘Recht’) signifies ‘law’. In English,

1 Due to constraints of space, the use of the État de droit term in other French-speaking

places (Belgium, Switzerland, Luxembourg, Canada, Africa, etc.) or in international law

cannot be analysed. For the same reason, the footnotes will be restricted to some recent

references that have not been discussed in the literature quoted in the bibliography.

1

the term Rechtsstaat and its various foreign replicas are translated

either as ‘rule of law’ (e.g., in the EU Treaties), which is quite a

broad translation, or, more literally, by ‘Law State’, ‘Legal State’, or

‘Rule of Law State’. I would also propose ‘Lawful State’, with regard

to Locke’s classic expression of ‘Lawful Government’. It should be

noted, however, that some French-speaking scholars, in the context

of French law (e.g., Maurice Hauriou, Mireille Delmas-Marty) and,

particularly, in the context of international law, prefer to write État

de droit with a small ‘e’. Thus, they delete any reference to the

‘State’, a highly complex term that is central in the classic legal

scholarship of continental Europe but ignored in the English

tradition. Using the term état with a small ‘e’, which simply signifies

‘situation’ or ‘status’, suggests that the expression ‘état de droit’

can be applied to any situation, to States, of course, but also to

polities that do not qualify as such (e.g., international

organizations).

Although centred on France, this chapter has a broader scope:

it raises some crucial questions regarding the globalization or, to

put it more cautiously – not everything called ‘global’ is global – the

internationalization of the German Rechtsstaat discourse. Especially

since the 1990s, that discourse took a strong lead – at least in the

western debate – on matters of nomocracy (I use this expression as

a culturally neutral, generic term). Often, the debate tends to be

2

reduced to two models: on the one side, the Rechtsstaat intellectual

tradition and its current implementation in German positive law

and, on the other, the so-called rule-of-law model, in which,

notwithstanding some fundamental differences, especially

regarding judicial review of statutes and the very concept of

Constitution, the English and US traditions are merged. Other

(western) types are neglected or marginalized.

The term Rechtsstaat is one of the most successfully exported

items of German legal scholarship: since the end of nineteenth

century, it has been progressively adopted in almost all European

languages and even outside Europe. It gave birth, for example, to

‘Stato de diritto’ in Italian, ‘Rättsstat’ in Swedish, ‘Państwo prawne’

in Polish, ‘pravovoe gosudarstvo (правовое государство)’ in

Russian, ‘shteti i të drejtës’ in Albanian, ‘hukuk devleti’ in Turkish,

‘Estado de derecho’ in Spanish, ‘dawlet al-qanoun’ in Arabic, and

‘Hôchikokka’ or ‘Hôchikoku’ in Japanese. Each discourse was

inspired either directly by the German model or by the use of a

literal replica by some other system (e.g., the use of État de droit in

French-speaking African countries has been strongly influenced by

the attitude of France and some international organizations such as

the EU and the World Bank). Currently, the ‘global’ diffusion of

German legal terms – another illustrative example is the success of

the term ‘Grundrechte’ (Fundamental Rights), instead of ‘droits de

3

l’homme’ – and German solutions (e.g., the institution of the

Bundesverfassungsgericht, its case law on human dignity or on

‘Solange’, the eternity clause of Art. 79 para. 3 Grundgesetz,

militant democracy) is such that some scholars in Spain, for

example, speak about the ‘Germanization’ of constitutional law and

of constitutional law scholarship.2 Certainly, an increasing number

of jurists around the world use Rechtsstaat or, more frequently, its

local translation. Their language may be Germanized, but has their

mind set as legal practitioner or scientific scholar also been

influenced by German views and approaches?

One would expect so, as words – unless they are synonyms or

lies – are not neutral (i.e., not interchangeable): they convey certain

specific meanings. Law is expressed by language: to change the

former, the easiest and most direct way is to change the latter (one

rewrites the text, for example, by inserting the domestic translation

of the term Rechtsstaat at the fore-front of the Constitution3). By

2 Pedro Cruz Villalon, “Spanien,” in Ulrich Battis et alii, eds., Das Grundgesetz im

internationalen Wirkungszusammenhang der Verfassungen. 40 Jahre Grundgesetz

(Berlin: Duncker und Humblot, 1990), p. 93.

3 Launched by Bavaria after WWII (Const. 1946, art. 3; on federal level: art. 28

Grundgesetz 1949), the constitutionalization of the term Rechtsstaat has occurred in

Turkey (Const. 1961, art. 2), then in Portugal and Spain in the 1970s, and then in Brazil

in 1988, before becoming an international trend after the fall of the Berlin Wall (see

Romania, Bulgaria, Slovenia, Poland, Estonia, Russia, Switzerland, Finland, Benin, Togo,

Burkina Faso, Madagascar, DR Congo, etc.; see also a recent European example: Const.

4

changing the words people use when thinking about, or

interpreting, the written law, one may change their preconceptions

thereof and, thus, indirectly, change the law. Yet, however

reasonable it might appear, the working hypothesis that equates the

Germanization of juridical language with the Germanization of the

local legal mentality and/or legal norms is not always valid. This is

obvious in the French État de droit discussion initiated by Léon

Duguit: while the phrase, as he used it, stemmed from the German

word, none of its meaning did. One may wonder whether parts of

the current international success of the term Rechtsstaat is just a

fashion or a new buzzword.

If, however, the Germanization of the terminology amounts to

a substantial change inspired by German views – as has happened

in France in several cases – why, how, and to what extent did this

change take place? Is it possible to induce a change of law – even a

paradigmatic one – by simply adding to a given legal system a new,

catchy phrase taken from abroad, such as État de droit? What is the

power of this type of single term? In France, as in some other

countries, scholars, not legislators, were the driving force behind

the transplantation of the Rechtsstaat term, which, at least at the

beginning, was totally external to positive law, as the term was not

part of the latter’s official terminology. What was the function of

Norway 1814, § 2, as amended in 2012).

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this scholarly notion? Was it: (a) descriptive (serving, for scientific

investigators, as an external analytical tool in order to screen,

identify, and classify the content of one or all legal systems); or (b)

prescriptive (serving politicians, judges, citizens, and scholars in an

attempt to: conserve the status quo, to re-read open-textured

provisions in light thereof, or to radically re-write the law); or (c)

both descriptive and prescriptive?

Through the emblematic, albeit not-totally-representative

example of France – France stands here for the type of countries

with a longstanding, liberal and democratic nomocratic tradition, as

opposed to new democracies evolving from a dictatorial past – this

chapter provides a first, necessarily incomplete insight into the

‘shadow side’ (i.e., the often-overlooked side that some may even

call the ‘inglorious’ side) of the internationalization of the German

Rechtsstaat discourse. Yet, this shadow side matters, for practical

and cognitive reasons. Although the two ‘global’ models mentioned

above largely outshine the French État de droit (specifically, its

system of judicial review that lags behind)4, French public law still

serves as a source of inspiration to certain regimes, be they former

colonies or not, that are not necessarily looking for the most liberal

4 Michel Fromont, “Les mythes du droit public français: séparation des pouvoirs et État

de droit,” in Patrick Charlot ed., Utopies. Études en hommages à Claude Courvoisier

(Dijon: Éditions universitaires, 2005), pp. 293-302; Olivier Jouanjan, “Le Conseil

constitutionnel est-il une institution libérale ?,” Droits, vol. 43 (2006), pp. 73-90.

6

solution.5 France has also contributed to the worldwide diffusion of

the term Rechtsstaat, by conditioning, since the Conference of La

Baule (1990), its support to African countries, inter alia, on their

État de droit. Furthermore, speaking of models and their diffusion

presupposes an understanding of not only how, but also to what

extent – or limit, because there are limits – the German discourse

has been adopted abroad. From this perspective, this chapter

analyses both the displacement and resistance (be it micro- or

macro-resistance) of the former French nomocracy tradition, a

tradition that some English-speaking scholars would call ‘political

constitutionalism’ as opposed to ‘legal constitutionalism’. Indeed,

the pre-État de droit theories in France conveyed, at least since

1789, a strong distrust of the power and independence of courts; it

favoured non-judicial (political) organs to be the guardians of the

supremacy of the Constitution – an idea that, now, appears rather

strange to many people around the world because the judge is

frequently considered the ‘natural’ bulwark protecting the law,

including the Constitution. The most influential definition of the new

État de droit phrase, i.e. the concept that emerged in the 1920’s

and was later unearthed after 1977, established precisely this

5 See, for example, the Constitutional Council of Kazakhstan (Const. 1995, art. 71 ff). In

the Democracy Index established by The Economist (2017), Kazakhstan is ranked 141

out of a total of 167 countries; it is qualified as ‘authoritarian regime’. See also below

footnote 13.

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strong link between the existence of a legal norm and its protection

by a court. It paved the way for a radically new vision of the judges’

role in democracy, an issue that was – and still is – particularly

sensitive in Montesquieu’s home country. From this historical angle,

this chapter also offers a broader picture of the diversity of

(western) understandings of nomocracy.

An analytical framework:

How to analyse the transfers of this type of keyword?

Legal transfers are, in general, highly complex phenomena.

When applied to such an elusive object as Rechtsstaat and its many

meanings, the complexity is even greater.

1. Legal transfers, even when freely chosen (as was the case

with France’s and with most other countries’ importation of

Rechtsstaat), are rarely a hundred percent take over. That

limitation applies where the object at stake is a small set of

technical provisions of some code (i.e., some ‘rules’) and even more

so when the transfer concerns a multifaceted and elusive

intellectual construct such as the Rechtsstaat discourse, a

‘principle’ or even ‘meta and macro-principle’ with several series of

components and subcomponents. In the transfer, some elements or

nuances may be deleted, transformed, or added; its scope (or

target) may be reduced, expanded or reconfigured. The translation

8

is creative or partial. It seems highly difficult – Pierre Legrand even

considers it impossible – to transplant (or, more precisely, to

recreate) the cultural and social background of the transferred

object. Thus, how far does the French État de droit discourse, and

similar discussions in other countries, diverge from its German

origin?

As already mentioned, some French scholars chose to change

the French version’s spelling (and, thus, its sense/scope), by using a

small ‘e’. However, even when the term was exactly the same (État

de droit with a capital E), its content has always been transformed

and adapted. The most extreme example is the enucleation process

operated by Duguit, the first to use the French phrase État de droit

as a notion applicable to French law: he stripped the German term

Rechtsstaat of all its German content, keeping just the (attractive)

nutshell. Carré de Malberg and Hauriou imported certain German

reasoning along with the term, but, at the same time, gave it a more

radical turn.

2. A transfer may consist in an almost immediate break (i.e.,

the legislature copies some specific foreign rules and ensures their

implementation) or be the result of a more-or-less long ‘infiltration’

process. If the object at stake has many facets and is, itself,

evolving over time, as is the case with the German discourse

surrounding the term Rechtsstaat, a first part of this larger set of

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ideas may be introduced, at some point, by some German-speaking

law professor(s) who diffuse(s) it amongst colleagues and, later,

practitioners. Once this first transfer has taken root, the

transplantation either (1) stops there (a one-shot Germanization) or

(2) acts as a cultural bridge that opens the way for future transfers

from Germany. Such latter transfers may be either: (a) sporadic

(enrichments and evolutions of the new key term, once transplanted

from Germany, are mainly home grown or are influenced by some

other foreign system), (b) frequent, or (c) structural (Germanization

amounts to an exclusive reorientation of national scholars and

practitioners towards German legal thinking). France’s État de

droit discourse is currently somewhere between hypotheses 2a and

2b; hypothesis 2c is definitely not applicable.6

3. As botanists well know, grafts may be rejected. The success

of a transfer, especially one that concerns a change to a

fundamental issue (as one would expect to be the case here),

depends on various parameters. Roughly, supply and demand must

meet. What is offered by the German side, under the heading of

Rechtsstaat, and what a certain country is looking for, given its own

6 See Olivier Beaud and Erk Volkmar Heyen, eds., Eine deutsch-französische

Rechtswissenschaft? Une science juridique franco-allemande? (Baden-Baden: Nomos,

1999); my book review thereof in Revue internationale de droit comparé (2003), pp. 995-

1000; Constance Grewe, “Das deutsche Grundgesetz aus französischer Sicht,” Jahrbuch

des öffentlichen Rechts der Gegenwart, vol. 58 (2010), pp. 1-14.

10

needs and constraints, must more-or-less correspond. The

Rechtsstaat package must be attractive, not necessarily in se, but

for that country’s elite at that particular moment. The probability of

a transfer decreases if the country in need of a solution (the

potential ‘importer’) has, in general, an ethnocentric attitude and if

the authority of the potential ‘exporter’ is low. After the fall of the

Berlin wall, the countries of Central and Eastern Europe were keen

to abandon their (communist) tradition and to look towards the

West. German Constitutional law was, then, a highly esteemed

model of how to overcome a dictatorial experience. In comparison,

the conditions for Germanization in France were much more

difficult. From 1789 until at least the end of the nineteenth century,

France was at the forefront of modern progress in matters of

nomocracy; France was proud of its own genius and tradition, and

often saw itself not as an importer, but as an exporter, of its law and

legal scholarship. When, during the Third Republic (1870-1940),

some elements of the various German Rechtsstaat theories found its

way into parts of the French constitutional scholarship, the

conditions for such a transfer were seemingly the worst possible: at

crucial moments during this long infiltration process (in 1870, 1914,

and 1939), Germany was France’s military and civilizational arch-

enemy. Yet, one aim of the Gallicization of the Rechtsstaat

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discourse was to subvert a central and longstanding feature of

France’s Constitution and legal system.

The Gallicization of Rechtsstaat: Three historical steps

Looking at it from a certain historical perspective, the current

international success of the Rechtsstaat term is astonishing. In the

eighteenth and nineteenth centuries, the driving liberal models in

constitutional law were, mainly, England, the United States, and

France. What liberal politician, philosopher, or law professor would

have been interested in German law or legal scholarship at that

time, as both lagged behind the standards set by the others? In

1881, in a famous letter to the Prussian Minister Gustav von

Gossler, Bismarck mocked the elusiveness of the ‘artificial term’

(Kunstausdruck) Rechtsstaat (not a particularly original criticism);

more interestingly, he pointed out that the term had yet to be

translated into any foreign language, which was quite true. What,

then, made foreign lawyers change their attitude? Regarding

receptivity thereto in France, three crucial periods may be

distinguished: the nineteenth century; the early twentieth century

(the so-called golden era of classic public law scholarship during the

Third Republic); and the years since 1977.

1. During most of nineteenth century, until the coming of the

Third Republic (1870-1940), the various Rechtsstaat debates did not

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give rise to any transfers in France. Although the (normative)

concept of Rechtsstaat, as defined by Rotteck, Welcker, and Mohl

during the Vormärz Era (1815-1848), was known, at least to some

extent, in France, it had not attracted any sufficient interest leading

to its importation. Indeed, most of their books on the subject found

their way to the shelves of public libraries in Paris. Even though

French constitutional discussions were very often focussed on

national history (before and after 1789) and the English model,

exchanges between French and German liberals and scholars took

place. In 1844, Mohl’s famous work Die Polizeiwissenschaft nach

den Grundsätzen des Rechtsstaats was even reviewed in a

prominent French legal journal, where the term Rechtsstaat was

translated by ‘État légal’(‘légal’ in that case meaning ‘statutory’).

What was missing was not so much the supply, but the demand: no

French thinker was interested in transplanting the German term

into French discourse on French law. Indeed, it is one thing to

translate a German term into French and use that translation to

present German debates about German law (this occurred in France

in 1844, 1868, 1877, 1901, 1903, etc.); it is quite another to apply

the newly coined French phrase to French law (this first happened

in 1907, with Duguit). This second step allows, inter alia, that

French phrase to be used to rethink, in light of some German

(normative) concepts, French law (this happened later with Carré

13

de Malberg and Hauriou). The German Rechtsstaat theory during

the Vormärz period was clearly a normative, natural law concept. It

was used by liberal forces to seek (liberal) changes to positive law

and to legitimize them once they were achieved. Yet, its substantive

content was inspired by, or was similar to, western (especially

French) ideals of modern constitutionalism, with one major

qualification: German liberalism, as conveyed by the Rechtsstaat

discourse, was less liberal (less ‘aggressive’) than French liberalism

with regard to: the right to resist, the principle of national

sovereignty, and the parliament’s power vis-à-vis the monarch. This

explains the lack of interest, or silence, on the French side.

But, if the French rejected the phrase Rechtsstaat, which key

term(s) did they use to convey their own understanding of

nomocracy? The question matters in order to identify the French

intellectual landscape of the pre-État de droit period and to

measure how far that terminology and mind set has, or has not,

changed after 1907. Theories about nomocracy are expressed not

only by thousands of words, sentences, and texts – book shelves are

full of them – but, very often, their essence, or even their entire

message, is supposed to be encapsulated in a single word, a key

term or a catchy phrase. The latter both informs and reflects

people’s reflection in the field: by changing the paradigmatic words,

scholars may indirectly trigger a change in human reality on a

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paradigmatic issue; by looking at those words, especially when a

new one pops up, an observer may also detect an incoming-yet-

invisible tide.

An historical and comparative discourse study shows that the

language of legal thinkers and practitioners in Europe, since the

Enlightenment, encompasses not fewer than four types of key

terms.7 Quite often, they were synonyms or, if their content was

substantially different, they served the same function: each type

conveys a certain idea of a polity subject to, and regulated by, law

(i.e., nomocracy, as a generic term). The first category of terms

refers to a well-ordered polity in which the res publica matters and

the common good is strongly linked to law, i.e. the key term

‘République’ in French (Rousseau), ‘Republik’ in German (Kant),

and ‘Commonwealth’ or ‘Republic’ in English (e.g., Locke, Coke).

The second type of key term encompasses the term ‘État’, ‘Staat’, or

‘State’ in the sense of a State defined as a moral person (e.g.,

Hobbes, Gerber, Jellinek, Esmein, and Carré de Malberg), and, as

such, informed by law (positive law and, sometimes even on a

higher level, the social contract, i.e. natural law). The third type is

inspired by the classical Greek and Roman terminology: Aristotle’s

‘nomon archein’, Pindar’s ‘nomos basileus’, Titus Livius’ ‘imperia

7 Luc Heuschling, État de droit, Rechtsstaat, Rule of Law (Paris: Dalloz, 2002), p. 35ff,

49ff, 169ff, 323ff, 343ff.

15

legum’, the Digest’s ‘lex est omnium regina’. It gave birth, inter

alia, in English to ‘government of law(s)’, ‘rule of law’, ‘due process

of law’, ‘reign of law’ (the alternative key term proposed by Ivor

Jennings), ‘empire of laws’, ‘nomocracy’ and, more recently,

‘principle of legality’. Equivalent terms are: in French, ‘règne de la

loi’, ‘principe de légalité’, ‘Loyaume’ (instead of ‘Royaume’),

‘prééminence du droit’, in German ‘Herrschaft der Gesetze’,

‘Rechtszustand’, and some others. The fourth type is a combination

of the terms ‘State/Staat/État’ and ‘law/Recht/droit’: the most iconic

example is, of course, Rechtsstaat together with some similar terms

such as ‘Verfassungsstaat’ (Constitutional State) and

‘Gesetzesstaat’ (State bound by statutes). But, even in the past,

before its translation into foreign languages, the German

Rechtsstaat was not unique.8 In France, Bodin, in his famous treaty

Les six livres de la République (1576), defined ‘Republique’ as a

‘droit gouvernement’, ‘gouvernement’ being understood not in a

strict sense as it is usual today (meaning the cabinet), but in a

larger sense (encompassing all public authorities, i.e., the State).

Bodin’s expression was translated by his English translator in 1600 8 Contra: Ernst-Wolfgang Böckenförde, “The Origin and Development of the Concept of

the Rechtsstaat,” in his State, Society and Liberty: Studies in Political Theory and

Constitutional Law, translat. by JA Underwood (New York: Berg, 1991), p. 48:

‘Rechtsstaat is a term peculiar to the German-speaking world; it has no equivalent in any

other language […] French legal terminology has no comparable words or concepts

whatever’.

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as ‘lawful government’, an expression that, later, was also put

forward by Locke. Yet, Bodin’s and Locke’s attempts to introduce

this potential key term into the lexicon failed, unlike the German

(and now worldwide) success story of Rechtsstaat, which, in the

context of the EEC and EU, gave rise to analogous terms like

‘Rechtsgemeinschaft / Communauté de droit (Lawful Community)’

and ‘Union de droit (Lawful Union)’.

In any given society, it may happen that, on this vast field,

there exists only one consensual – even sacred – key word that is an

absolute ‘Hurrah! Word’9. Of course, many people may, for various

reasons, understand this key term in different ways: referring to the

same word does not imply a reference to the same concept or

meaning. This situation may be observed, for example, in England,

although with some qualifications, since the enthronization of the

term ‘rule of law’ by Dicey at the end of nineteenth century or in

Germany when Rechtsstaat became, after 1945, the unrivalled

iconic term, despite the term having fallen into oblivion by the end

of the preceding century (it was largely absent in the classic

constitutional law writings of Laband, Gerber, and Jellinek, who

9 The term is borrowed from C.K. Ogden and I.A. Richards, The Meaning of Meaning: A

Study of the Influence of Language upon Thought and of the Science of Symbolism

(London: Kegan Paul, 2nd edn, 1927), quoted by Stéphane Beaulac, “The Rule of Law in

International Law Today,” in Gianluigi Palombella and Neil Walker, eds., Relocating the

Rule of Law (Oxford: Hart, 2009), p. 222.

17

focussed on the term ‘Staat’, defined as a moral person, and, later,

under the Weimar Republic, in the writings of such prominent

scholars as Smend or Kelsen). Key terms may fall out of fashion; the

conceptual framework legal scholars use in order to systemize and

inform the study of legal materials in light of a certain nomocracy

concept may vary greatly. Therefore, the collective reflection about

this vast field may be split into different strains, each one fighting

under its own flagship term. The others’ key terms are met with

open scepticism or even harsh criticism as a ‘Boo! Word’10; each key

term only reflects the ideas of one segment of the discussants, even

though some convergences can be observed if different terms

appear to be synonyms).

In France, before 1907, there was not one, but several key

terms: in administrative law, the case law of the famous Conseil

d’État and the administrative law scholarship (which, in France,

pre-existed the academic discipline of constitutional law) turned

around the phrase ‘principe de légalité’. In French political thought

and constitutional law scholarship, the central expressions used

were, mainly, ‘État’, defined as a moral person, and ‘République’, a

term that, although less mobilized in legal science, remains very

popular amongst ordinary people and politicians, as it is identified

with the so-called ‘republican values’ of liberté, égalité, laïcité, etc.

10 C.K. Ogden and I.A. Richards, The Meaning of Meaning.

18

2. The transplantation of Rechtsstaat took place during the

Third Republic, more precisely: from 1907 to the 1930s. The

conditions for that transfer were rather complex, because, in some

ways, they were easier and more difficult. On the German side, the

‘supply’ both decreased and changed. After 1870, the German

Rechtsstaat discourse disappeared almost entirely from the classic

German constitutional law scholarship relating to the German

Empire: as already mentioned, in the leading works of Gerber,

Laband, and Jellinek, the term Rechtsstaat was overshadowed and

marginalized by the key term Staat, defined as moral person, bent

only to obey its own positive laws according to the self-limitation

theory. The Rechtsstaat term migrated, since the influential

writings of Otto Bähr, Rudolf Gneist, and Otto Mayer, to the then-

nascent administrative law scholarship, where its mainly

prescriptive function served to support well-functioning

administrative justice, run by specialized courts and protecting the

subjective rights of individuals. On the French side, reactions to

German legal thought were ambivalent. After the military disaster

of 1870, a crucial mission of the entirely reorganized French

university system was to reinvigorate the nation’s forces by

‘learning from the enemy’. Most of the influential scholars, who are

still considered the founding fathers of French constitutional law

scholarship (Duguit, Carré de Malberg, Hauriou; but not Esmein),

19

focussed on the German debates, albeit with mixed feelings. Like

many public lawyers in continental Europe, they were fascinated by

the depth and richness of the German Staatsrechtslehre and

Staatslehre. Yet, at the same time, for epistemological and patriotic

reasons, they often adopted a critical, if not hostile, stance. Value

neutrality and legal positivism were rejected by most French public

law scholars, who, until the 1930s, clung to various natural law

doctrines. The moral values they cherished, especially in the

context of the growing tensions with Wilhelminian Germany, were

those of France; any scholar who was considered to have come too

near to German ideas had to face harsh criticism, as happened to

Duguit and Carré de Malberg. In Italy, in the 1880s, scholars and

politicians had transplanted the term Rechtsstaat into Italian in

order to reimagine their own (inefficient) system of judicial review

of administration in light of the German discourse developed in the

field of administrative law by Gneist, Mayer, etc.11 In France, the

home of the famous and often copied Conseil d’État, whose judicial

review of administration was based, conceptually, on the idea of the

protection not of subjective rights (as in Germany), but of objective

law, such a transplant was simply unthinkable. In France,

something different was at stake in the Gallicization of the

Rechtsstaat discourse. Two approaches can be distinguished. 11 On the reception of the Rechtsstaat term in Italy, see Eric Carpano, État de droit et

droits européens (Paris: L’Harmattan, 2006).

20

Fascinated by, and yet fiercely critical of, the powerful

intellectual system of German scholarship, Duguit was the first to

introduce, in 1907, the term État de droit as a concept applicable to

French law. Yet, if one looks at it closely, this transfer was rather

peculiar because Duguit transplanted the German term but rejected

all the meanings that, at that time or before, were attached to it in

Germany. He rejected the positivist theory of self-limitation of the

State (Jellinek, Ihering) and the definition of the State as moral

person; he was neither particularly interested in Gneist’s ideas on

administrative courts nor in any of the previous Rechtsstaat

theories (those of Mohl or Stahl, to quote two famous examples). So,

why did Duguit transplant the German term? Two potential reasons

may be advanced. (a) The term Rechtsstaat / État de droit perfectly

fits into Duguit’s intellectual system, the latter being entirely

focussed on the subjection of the ‘État’, defined as a pure

phenomenon of might external to any law, to the ‘droit’, the law,

which Duguit defined by referring both to positive law and, on a

higher level, to the ideal of social solidarity. To summarize it nicely

in the language of mathematics: ‘État’ + ‘droit’ = ‘État de droit’. (b)

As Duguit stated explicitly, all his writings were geared to fight

German scholarship. He saw himself competing with Georg Jellinek,

one of the finest legal minds of the time, for intellectual leadership

in Europe. Thus, one may assume (there is now written proof of it)

21

that taking over the German term Rechtsstaat and redefining it

entirely with ideas stemming from ‘France’ (i.e., Duguit, with a

more liberal, democratic and, especially, social flavour), was quite a

strategic stroke. Yet, although Duguit had many disciples, his use of

État de droit had no lasting impact. After WWII, administrative law

scholars continued to refer to Duguit’s doctrine of ‘service public’,

but they totally rejected his key term État de droit as the all-

encompassing fundamental concept of French public law. Instead,

the idea of service public was nested within the alternative

fundamental concepts of État, defined as a moral person – a concept

totally rejected by Duguit –, and, above all, ‘principle of legality’,

the central principle in the case law of the French Conseil d’État.

Yet, under the Third Republic, a second logic of

transplantation of the Rechtsstaat discourse took place, which

aimed to transplant not only the German term, but also some of the

underlying German ideas. Carré de Malberg, as one of the rare

legal positivists amongst constitutional lawyers, associated the term

État de droit with the famous German theory of self-limitation of the

State. But, that use of the French phrase was quite rare and had no

lasting impact, as, in both Carré de Malberg’s and the German

writings, the theory of self-limitation of the State was all

encapsulated in the key term État (Staat), and not in État de droit

or Rechtsstaat. More famously, and importantly, Carré de Malberg

22

and some other scholars, such as Hauriou, used the term État de

droit/état de droit in order to convey a much thinner, albeit highly

incisive, normative concept related to the role of courts in the

French democracy.

In the German debate on judicial review of administration, a

new definition of the term Rechtsstaat term emerged, whose core

idea consisted in a certain definition of law: law was, intrinsically,

linked to courts, as a rule only qualified as a legal rule if a judge,

who was able to sanction its infringement, existed (as was the case

in privative law, which served as model for this definition). Any rule

lacking a judicial guarantee was not considered, strictly speaking, a

legal rule, although it may have been enacted in a formal legal text

and be protected by some non-judicial organ; it was retrograded to

the status of a moral rule. Such a definition of law, which might look

rather obvious to English lawyers (cf. the dictum ‘no right without a

remedy’, Austin’s theory of law, Dicey’s distinction between ‘law’

and ‘conventions’) was far less familiar on the continent, at least for

public law specialists: many rules of international, constitutional,

and even administrative law lacked any judicial guarantee at the

time. In France, this restrictive definition of ‘law’ had no major

critical impact in the field of administrative law, due to the

existence of its Conseil d’État, which became a true, independent

court under the Third Republic. But, it was explosive with regard to

23

the subjection of Parliament to the entrenched Constitution. At the

end of nineteenth century, while German liberals mainly continued

to worry about the dangers proceeding from an executive that was

still in the hands of the monarchical forces with no serious

parliamentary checks, French liberal scholars started to fear the

abuses, in their eyes, of an overly powerful Parliament. In this

context, some scholars mobilized the newly coined phrase État de

droit: they ascribed to it, as Bähr and Mayer did to the term

Rechtsstaat, a conceptual link between law and judicial protection,

but, in contrast to the latter, they applied it not to the

administration, but to Parliament. By Gallicising a certain

Rechtsstaat debate, they gave it a more radical turn, in order to

adapt it to the practical needs of France. In the writings of Carré de

Malberg, Hauriou, and some others, the term État de droit became

a slogan intended to support judicial review of the constitutionality

of Acts of Parliament. It was used to trigger a total break with

French tradition that had, since 1789, rejected any judicial review

thereof and, instead, promoted the idea of non-judicial (political)

guardians of the Constitution.

Yet, this graft, or cultural break, failed. Whereas Hauriou

argued that, in light of this new concept of État de droit, the silence

of the French Constitution of 1875 on the matter of judicial review

of statutes ought to be interpreted as allowing all courts to

24

undertake such review, the French Cour de cassation and the

Conseil d’État read its silence in light of the French tradition and,

thus, refused to permit judicial review of Acts of Parliament. In

Parliament, all proposals to introduce some type of judicial review

of statutes, either by all courts or by some special, constitutional

court, were rejected. The old mistrust of judicial power prevailed.

Significantly, whereas the discourse in favour of the État de droit all

but died by the end of the 1930s – it had no descriptive function and

its main normative function failed – the polemical term

‘Gouvernement des juges’ (government by the judiciary; translated

today as ‘juristocracy’), having been imported in 1921 by Edouard

Lambert from the United States, was definitely adopted into the

French culture. From the 1930s on, especially during the so-called

“Révolution Duverger” after WWII, a new generation of

constitutional law scholars preferred to concentrate on empirical

studies instead of studying the formal text of the Constitution that,

anyway, being not judiciable, proved to be relatively ineffective.

Political reality mattered more than legal rules. Thus, constitutional

law studies were merged with, and dominated by, political science

studies.

3. At the end of the 1970s, under the Fifth Republic, the

discourse on the État de droit took on new life. In the meantime, a

major shift had taken place in positive law. In 1958, the Conseil

25

constitutionnel was established. In 1971, in its seminal decision on

Liberté d’association, that body intensified and enlarged its own

role. The État de droit discourse of Carré de Malberg or Hauriou

and, a fortiori, the new German post-1945 Rechtsstaat discourse

centred on protection of fundamental rights by the Federal

Constitutional Court had no influence at all, or only a marginal

influence, on these ground-breaking changes. The 1958 caesura

was due to, and informed by, President de Gaulle’s political will to

protect the executive against Parliament, whose power was

considered to be the main cause of France’s weakness.

Yet, the État de droit discourse was reactivated, and enriched,

in order: (a) to describe these radical transformations via a new

analytical tool (the necessity and adequacy of this function was,

however, questioned by those who considered that these

transformations could be perfectly reflected by the traditional

scientific categories); and, much more importantly, (b) to justify,

enhance, and even reorient (in a more liberal sense) the ongoing,

still-fragile, and malleable transformation process. In 1977, against

the ongoing criticism of ‘gouvernement des juges’, President Valéry

Giscard d’Estaing celebrated the function of the Conseil

constitutionnel by referring to the ideal of État de droit, a regime in

which the hierarchy of norms would be implemented, at each level,

by courts. The 1971 decision was hailed by the law professor Olivier

26

Cayla in 1998, not as an ‘coup d’État’, as some critics thought of it,

but as a ‘coup d’État de droit’ (the term État de droit referring,

here, to the need for judicial protection of human rights). Professor

Louis Favoreu, one of the first researchers on the Conseil

constitutionnel, and founder of the influential ‘school of Aix’,

specialized in the comparative study of constitutional adjudication,

considered the État de droit to be the new paradigm of the new

constitutional law in France and in Europe. Thus, the phrase État

de droit was upgraded to the central concept in the writings of this

school of thought. On the most abstract level, the term État de droit

was equated with the hierarchy of norms, as developed by the

Vienna School. More concisely, it was supposed to reflect (but also,

as some would say, to inform) the new central role of the

Constitution, which became, in 1958, a true legal norm due to the

existence of judicial review, and even the highest and most

important norm in the legal system (the so-called

constitutionalization of the legal system). The term also served to

convey a new, more favourable view of the constitutional courts,

and, more generally, of all courts, as guardians not only of statutory

provisions (rules), but of a society’s values, such as fundamental

rights (principles). That, in turn, encouraged other scholars and

activists to try to enlarge the scope of the État de droit discourse,

by fighting for more independence and more financial means for the

27

judiciary, a very sensitive issue in France given its long tradition of

judicial dependence12.

As a normative, open-textured tool, the term État de droit may

pop up in various debates, be it on judicial review of constitutional

amendments, the status of prosecutors, the formal quality of legal

norms, the state of emergency, etc. Even though the term’s

extension is, per se, virtually limitless and is effectively increasing –

its precise topography is beyond the scope of this chapter – one

should, however, note that not all scholars, practitioners, or other

people use it. Some still prefer traditional references (État,

République, principe de légalité). The academic sources of its

content remain varied. Carré de Malberg served, at the beginning,

as a strong (French!) reference point; but, progressively, the term

was fuelled by, and combined with, many other doctrines, starting

with Kelsen’s Reine Rechtslehre (notwithstanding Kelsen’s well

known criticism of the term Rechtsstaat!), the model of southern

European Constitutional courts (Italy, Spain, Portugal), which were

relatively open to German influences, and the post-1945 German 12 Luc Heuschling, “Why Should Judges Be Independent? Reflections on Coke,

Montesquieu and the French Tradition of Judicial Dependence,” in Katja Ziegler, Denis

Baranger and Anthony Bradley, eds., Constitutionalism and the Role of Parliaments

(Oxford: Hart, 2007), pp. 199-223. For a historical account on French judiciary, see:

Jacques Krynen, L’État de justice. France, XIIIe-XXe siècle, 2 vol. (Paris: Gallimard, 2009

and 2012); Jean Pierre Royer et alii, Histoire de la justice en France du XVIIIe siècle à

nos jours, 5th edition (Paris: Puf, 2016).

28

Rechtsstaat discourse (in the 1990s, the German Staatsrechtslehre

was rediscovered in France and has become a research object and

inspiration source for such influential scholars as Michel Fromont,

Constance Grewe, Olivier Beaud, and Olivier Jouanjan, to name only

a few). Today, via the terms État de droit and similar Rechtsstaat

replicas in other languages, the German understanding of the rule

of law has become, at least to some extent, part of the intellectual

landscape for many lawyers outside Germany, including France.

Micro- and macro-resistances

Speaking of Germanization should not, however, mislead:

there is no uniformity. Differences between the current French and

German situations are numerous. The phrase État de droit is

neither embedded in the French constitutional texts nor used in the

constitutional case law as a legal norm. The French legal system did

not, via the État de droit discourse, abandon its traditional doctrine

of monism with regard to international law, in favour of the

traditional German approach of dualism. It is hardly conceivable

that France will ever abandon the particular institutional model of

its Conseil d’État, which, in sharp contrast to the German

understanding of an administrative court, is both an adviser to the

executive and a judicial body whose members have been trained at

some grandes écoles, but not at law faculties. With regard to its

Conseil constitutionnel, although some of its national, unorthodox

29

peculiarities have already been ‘normalized’ (e.g., deleted in the

2008 reform), or are currently undergoing a reform (e.g., the

abolition of the de jure presence of former heads of state), there are

still some significant, unique features. French constitutional

scholars and judges have not adopted, as the cultural background of

their legal reasoning, natural law theories that, in contrast, played a

crucial role in the establishment and life of the post-WWII German

Rechtsstaat. The Conseil constitutionnel in Paris is much less

activist than the Bundesverfassungsgericht in Karlsruhe. Even the

way their decisions are written and justified remain opposites (e.g.,

extensive v. short, dissenting opinions v. single statement of the

majority). Their respective academic debates on constitutional

interpretation take quite different lines, with regard to both

interpretation methods (a rich literature exists in Germany on this

issue, while relative silence prevails in France) and its concept (to

over-simplify it, Robert Alexy’s natural law infused theory of

principles v. Michel Troper’s realist theory of interpretation). Last,

but not least, whereas most other western countries, especially

Germany, subject general norms adopted by citizens themselves, via

referendum, to judicial constitutional review, France still clings to

its stance that ordinary statutes or even constitutional amendments

adopted by the ‘peuple’, based on art. 11 of the French

Constitution, are non-judiciable. According to the seminal 1962

30

decision of the Conseil constitutionnel, norms approved by electors

are the ‘direct expression of national sovereignty’.13 The État de

droit discourse faces here a major cultural obstacle: the tradition,

going back to Napoleon14 via de Gaulle, of a ‘dialogue’ between the

head of state (who raises a question) and the citizens (who deliver,

hopefully, the expected answer), that escapes any judicial review, as

the people are, according to de Gaulle, the ‘Supreme Court’.

Through said art. 11, the Constitution can be openly violated, as

happened in 1962, if a majority of voters agree.

Bibliography

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13 This reasoning has been transplanted by some former French colonies. See Gabon, art.

110 of the Statute on the Constitutional Court of 1991. In the Democracy Index 2017,

Gabon is qualified as authoritarian regime and is ranked 126.

14 On the concept of ‘caesarian democracy (démocratie césarienne)’ as developed and

implemented under Napoleon III, see Pierre Rosanvallon, La démocratie inachevée.

Histoire de la souveraineté du people en France (Paris: Gallimard, 2000), chapter V, p.

181ff.

31

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